Election Law

  • March 1, 2017

    by Katie O’Connor

    In an era of record political polarization, there are still a handful of issues on which Americans seem to agree. One such issue is the need to implement serious campaign finance reform and drastically reduce the amount of money in politics. According to a 2015 New York Times/CBS News poll, 84 percent of respondents thought that money has too much influence in American political campaigns. 39 percent of respondents said the system for funding political campaigns needs fundamental changes, and another 46 percent said the system needs to be completely rebuilt. Over three-quarters of respondents were in favor of limiting the amount of money individuals can contribute to political campaigns.

    Despite a near consensus on the need for change, little has been done to slow the flood of money into politics in recent years. In fact, it has only hastened, with some help from the Supreme Court. The 2016 presidential election is estimated to have cost $6.9 billion, up from $4.3 billion in 2000. Part of the blame for the impasse lies with Congress, which has been growing increasingly gridlocked for decades. But Congressional deadlock is not a total bar to campaign finance reform.

    The Federal Election Commission (FEC) is the agency whose mission is to enforce and administer campaign finance laws. Specifically, the FEC enforces laws which seek to “limit the disproportionate influence of wealthy individuals and special interest groups on the outcome of federal elections; regulate spending in campaigns for federal office; and deter abuses by mandating public disclosure of campaign finances.” Despite its bipartisan and overwhelmingly popular mission and its distance from a dysfunctional Congress, the FEC is not immune to gridlock. In fact, it has come to be referred to, in some circles, as the Failure to Enforce Commission.

  • December 16, 2016
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States at Illinois Institute of Technology Chicago-Kent College of Law

    On Monday, Dec. 19, 2016, the 538 members of the Electoral College will gather in their states to cast their votes for president. The expected outcome is that they will elect Donald Trump. But this year there has been a surprising amount of discussion of a different result, thanks to efforts of some electors themselves and a variety of academics, writers and advocates.

    Article II, section 1 and the Twelfth Amendment of the Constitution provide the framework for the Electoral College. Every state has a number of electors equal to their congressional representation – two Senators plus the state’s House delegation. (Under the Twenty-third Amendment, the District of Columbia also has three electors.) The state legislatures have the authority to determine how the electors are selected and there is no requirement that the selection be by popular vote. Nor is there a requirement that the states assign their electors on a winner-take-all basis, as almost all do. (Maine and Nebraska are the exceptions.)

    Once the electors are selected, they meet in their states and cast their ballots. They certify the votes and send them to Congress, which will meet in early January to count the votes. To become president, a candidate must receive a majority – at least 270 – of the electoral votes. If no candidate receives 270 votes, then the House of Representatives, voting in state delegations with each state receiving one vote, must choose between the top three electoral-college vote-getters.

    This system is an odd way to run an election in the 21st century. Its roots are in compromises made at the Founding to protect slavery and (arguably) to ensure the influence of smaller states. Some argue that there was no expectation that the electors would exercise independent judgment. But as Alexander Hamilton explained in Federalist 68, the Framers were concerned that the people might be taken in by an unqualified candidate and they wanted to ensure that “[t]alents for low intrigue, and the little arts of popularity” would not displace the “requisite qualifications” for the presidency. And, he added, “every practicable obstacle should be opposed to cabal, intrigue, and corruption.”  Finally, he argued that the electoral college would protect the country against “the desire in foreign powers to gain an improper ascendant in our councils.” It is hard to read this explanation for the Electoral College without wondering if Hamilton was prescient.

  • December 16, 2016
    Guest Post

    by Andrew W. Robertson, Acting Executive Officer of the History PhD Program, CUNY Graduate Center.  His newest forthcoming publication is The Oxford Handbook of Revolutionary Elections in the Americas, 1800-1910 (New York: Oxford University Press, 2018), ed. by Andrew W. Robertson and Eduardo Posada Carbó.  His current work in progress is Democracy in the Early Republic: America’s Other ‘Peculiar Institution’ and John L. Brooke, Distinguished Humanities Professor of American History at The Ohio State University. His current project are State Formations: Histories and Cultures of Statehood, co-edited with Julia Strauss and Greg Anderson, and Forging the Civil War North: Political Crisis, Fugitive Slaves, and Liminal Rupture in Antebellum America, 1850-1856.

    On Nov. 8, Donald Trump was elected president of the United States, winning a projected 306 Electoral College votes to Hillary Clinton’s 232. The election outcome surprised many veteran campaigners, politicians, pollsters, columnists and members of the public. The election result is an extreme outlier in the history of the republic – it is one of four out of 57 presidential contests since 1789 in which the Electoral College victor has not also won the even a plurality of the vote and one of eight in which the margin was two percent or less. The Electoral College will appoint a president, on its constitutional authority as directed by the states. Now, as in 1876, 1888 and 2000, the nation should carefully consult the documents that record its governing mandate, particularly in light of other more pressing clear and present dangers. 

    Perhaps the outcome of the election even surprised President-elect Trump. It is the surprises that have followed the election, however, that have pushed the U.S. to the brink of a constitutional crisis. Trump has refused to sell off his many properties around the globe or to place them in a blind trust, a situation that could place him in the position of receiving foreign emoluments.  While he initially announced that he would address potential conflicts of interest at a press conference on Dec. 15, he has now deferred any such discussion to January. Our situation is all the more complicated since Trump expressed his admiration of Vladimir Putin, the ruler of a country which for almost a century has been our country’s leading adversary. Trump has nominated for Secretary of State Rex Tillerson, the corporate chair of ExxonMobil, a company with billions of dollars at stake in the future of sanctions on Russia voted by the United States Senate. More ominously, this week the Central Intelligence Agency released its formal determination that Russian operatives had deliberately interfered in the presidential election to tilt the outcome towards Mr. Trump. The election process may have been so thoroughly compromised that public officials will need to consider whether it has been conducted fairly.  Russian interference would undermine the very legitimacy of the democratic process and could have grave and long-lasting consequences. In the words of Michael Morell, the former acting director of the CIA, this information is the “political equivalent of 9/11,” and “an existential threat to our way of life.”

    There has never been such a set of circumstances surrounding a presidential election in the history of the American republic. While Congressional leaders are considering an investigation of these charges, any such inquiry would require weeks to complete. These issues raise serious questions about whether Mr. Trump is constitutionally qualified to be president. None are likely to be resolved before the Electoral College meets to vote on Dec. 19.

  • October 13, 2016
    Guest Post

    by Joshua A. Douglas, law professor at the University of Kentucky College of Law. Professor Douglas specializes in election law and voting rights, with a specific focus on the constitutional right to vote, election administration and post-election disputes. He is the co-editor of a new book, Election Law Stories.

    When disaster strikes that impacts the ability to vote, election administrators should do what they can to preserve the fundamental right to vote.

    That was the message from U.S. District Judge Mark Walker at Wednesday’s hearing in Florida regarding the state’s voter registration deadline. The court found that shutting off voter registration on October 11, the statutory deadline, impermissibly would deny the right to vote to individuals who faced obstacles before that date because of Hurricane Matthew. The judge in essence replaced the days lost due to the hurricane by extending the voter registration deadline to October 18.

    Other instances of unexpected disaster also have forced election administrators to alter the rules to ensure robust voting rights. On September 11, 2001, New York City was in the midst of a primary election when the terrorist attacks began. The city quite rightly halted the election, postponing it for two weeks. In 2012, New York and New Jersey both altered their voting rules to allow voting for those who Hurricane Sandy had displaced. Even South Carolina Governor Nikki Haley extended the voter registration deadline for South Carolina voters in the wake of Hurricane Matthew last week. (North Carolina refused to extend the voter registration deadline beyond this Friday, but voters still have further opportunities to register during early voting. A lawsuit is now pending in Georgia asking the state to extend its voter registration deadline because of the storm.)

  • October 13, 2016
    Guest Post

    by Ngozi J. Nezianya, JD/MBA Candidate, Northwestern University; President, ACS Student Chapter at Northwestern University School of Law; Next Generation Leader and Student Member, ACS National Board of Directors

    Imagine a world in which registering to vote took only a simple form and no more than a few minutes of your time. Imagine a world in which the myriad ways that our government entities use to identify you could ensure that you get a say in exactly who does the verifying. Imagine a world in which casting your ballot could be completed on your way to work, on your lunch break or on your way home before you pick up the kids from school.

    Such a utopia need not be reserved for the depths of our imagination. In fact, for some in our country, much of this is already a reality. Thirty-one states and the District of Columbia currently offer online voter registration and five states automatically place their citizens onto voter rolls whenever they interact with government agencies. In the last presidential election, the average time it took to vote actually fell across the country – from 16.7 minutes back in 2008 to 13.3 minutes in 2012.

    Yet, despite those positive developments, one need only scratch the surface of these rosy data to reveal the discordant truths that coexist in our democratic process. Seven states maintain strict laws that require forms of photo identification that 11 percent of eligible voters do not have. Federal law requires states to maintain updated voter registration lists; however, when those laws result in the purges of millions of citizens from the rolls every two years, various states and their officials seem to disproportionately remove the poor, mistakenly remove Asian and Hispanic voters because they matched their surnames to the wrong people and in some cases outright intimidate black voters by sending police officers door-to-door to challenge those voters’ registrations. (And those are not even the most egregious purges.) Lastly, countless stories have documented how the closure of polling locations in heavily populated voting districts and the shortening of early voting periods across the country have caused citizens to wait up to five and seven hours in the blistering sun to exercise a right that the Supreme Court, dating back to 1966, had previously deemed “fundamental.” In other words, the extraordinary degree of variance at the other end of the voting experience skews our democratic process toward dystopia.